The author of this post is Ségolène Normand, Postgraduate Student in Private Law at the University of Valenciennes.
Digital technology has been investing all areas of society and its potential seems unlimited. At the global level, public institutions are progressively transforming in favour of eGovernment which involves rethinking both organisation and process, so that public services can be delivered online, quickly and at a lower cost for individuals and businesses (see for instance here). States are also investing massively in the digitisation of their justice system and national courts have to adapt to this new paradigm, irrespective of the type of disputes – domestic or cross-border – they are dealing with. Digitalisation has no borders.
Against this backdrop, the use of new technologies can facilitate the resolution of cross-border disputes, as it helps justice being faster, more accessible and efficient. The distance between courts and litigants may be removed by online hearings and proceedings. Digitalisation also makes cross-border judicial cooperation easier, in particular through the dematerialisation of circulation of procedural documents between courts, legal professionals and litigants. This trend has recently been illustrated by the recast of the Taking of evidence and Service Regulations (announced here) within the European Union (“EU”) and is one of the axioms of the modernisation of the European judicial area in civil matters (see here).
A seminar on Digital technology in family matters organised by the Academy of European Law (ERA) on 27 January 2021 gives me the opportunity to focus on digital justice in cross-border dispute resolution. What are the main tendencies of digital justice for international families worldwide? Does digitalisation lead to different ways and results in the legal and judicial treatment of family matters, as in other fields of private law?
On the one hand, digitalisation can contribute to promoting family mobility and ease dispute resolution. For instance, the translation of judgements by artificial intelligence (AI) may simplify the recognition of families’ documents in the receiving States. On the other hand, family legal issues often involve vulnerable parties and, therefore, deserve a specific attention within the process of digitalisation of justice.
This ERA seminar gave interesting insights on digitalisation of family justice, that I propose to share with the readers of the blog. The seminar brought together practitioners (professors, judges, lawyers, mediators…) from different jurisdictions, in order to present their national, as well as international experiences on digitalisation of family justice (1), the use of e-Codex in European cross-border procedures (2) and finally on legal tech and AI in family matters (3). The report is limited to some aspects of their contributions, with a private international law perspective.
1. Digitalisation of Family Justice
Several speakers presented various national digital progress in family law.
First, Annette Kronborg (Southern University of Denmark) screened the “mandatory digital application” and the “recovery of maintenance obligation” in Denmark. Unlike other Members States, Denmark introduced early the digitalisation in the family justice system. In fact, the first policy paper on digitalisation was introduced in 2001. The establishment in 2014 of a “mandatory digital application” introduced a digital communication between citizens and public authorities through a software application. And since 2015, a new digital authority has been centralising maintenance debts. But, according to the speaker, it must be reformed to be more efficient.
Second, Bregje Dijksterhuis (Molengraaff Institute for Private Law) explained the online divorce proceeding in the Netherlands. Thanks to “Rechtwijzer”, spouses can divorce online. It is up to them to decide what type of measures for their divorce they want. The project is a success for the user; nevertheless, lawyers criticise the lack of information on spouse’s rights.
Third, Yuko Nishitani (Kyoto University) presented the project of online marriages and divorces in Japan. Indeed, since the pandemic, Japan’s authorities plans to digitalise marriage and divorce as well as replace traditional administrative (paper) documents. Moreover, Japanese authorities envisage a legislative reform following the Resolution of European Parliament of 8 July 2020 on the international and domestic parental abduction of EU children in Japan. Since there is no possibility under Japanese law to obtain shared or joint custody, there is a significant number of unsolved parental child abduction cases where one of the parents is an EU national and the other is a Japanese national.
2. E-CODEX and Cross-border Proceedings
Joanna Guttzeit (Judge at the District Court Berlin & Liaison Judge of the International Hague Network of Judges and the EJN in Civil and Commercial Matters) focused on cross-border family procedures and online hearings.
In the EU, the general statutory duty to hear in-person the participants to the proceeding (especially children) for family courts can lead to the refusal of recognition for judgements in the field of parental responsibility in case of online hearings. This results from Article 23 of the Brussels II bis Regulation. Traditionally, families travelled to the courts to be heard. But with the advent of new technologies, family courts could proceed to online hearings if a family member is unable to travel. However, some EU Member States might refuse to recognise the judgment in such circumstances.
The pandemic speeds up online-hearing in many European countries, such as Spain, Poland and Germany. However, online hearing should be exceptional and never become the “normal rule”, in particular within proceedings implying children. The procedures have to guarantee the welfare of children. Some States, like Germany, are really strict on this point. This is the reason why the EU Members States should harmonise their procedures by following European guidelines.
Then, Cristina Gonzàlez Beilfuss (University of Barcelona) discussed digitalisation of cross-border judicial procedures.
Undeniably, the pandemic shows that digital development in Europe could be a real opportunity to improve cross-border judicial cooperation. This is why the European Commission promotes national reforms in the field. The use of new technologies is, according to the Commission, the more efficient way to encourage exchanges between competent authorities in the area of mutual legal assistance. A vast majority of participants during the seminar, thought this communication should be predominantly digital in the future, while a minority thought it should be exclusively digital.
Actually, the main issue is the assessment of the legal effect or admissibility of the electronically determined document and the applicable law. It should be governed by the law of the requesting State. Pr. Gonzàlez Beilfuss proposed to harmonise the diffusion methods of electronic documents between the courts of the EU Member States to have a more predicable cross-border proceeding for international families. Regarding the legal effect, it cannot be denied on the sole ground that it is an electronic means of obtaining a judgment.
E-CODEX is a project established by the European Commission, in order to facilitate secure exchanges of data between legal professionals and litigants in different EU Member States. It consists of a package of software components that enable the connectivity between national systems. In cross-border proceeding, e-CODEX allows to establish a bridge between national systems. For the Commission, e-CODEX is the reference for secure digital communication in cross-border legal proceedings.
More than half of the participants rarely or never received in the context of their legal practice requests in electronic format by e-CODEX. According to Xavier Thoreau, this is problematic and shows that EU ambition to use the e-CODEX system to support national digitalisation of cross-border as well as domestic justice may take a long time. This is also supported by the fact that the EU has only a “subsidiary jurisdiction” in domestic family procedure.
3. Legal Tech and Artificial Intelligence in Family Matters
Markus Hartung and Ulrike Meising (lawyers) presented with Alan Larking (Family Law Patners, Brighton) the potential of AI and legal tech in the lawyer’s work.
AI and legal tech are great tools to help lawyers. From now on, they have an unlimited access to the law. In particular, they have an easier access to the law of other Member States, which is useful in the presence of foreign components in legal disputes. Increasingly, online applications with algorithms rank the dispute resolution models. For example, some law firm websites provide clients with a form to fill in online and an algorithm proposes a legal solution. Digital cross-border dispute resolution is possible since online applications are capable to adapt to each family model. However, a lawyer should always control the solution introduced by the algorithm.
Finally, Bérénice Lemoine (Council of the European Union) concluded with some thoughts on legal tech in family matters. Yet, the development of digitalisation of family justice in Europe is still far from uniform. For instance, only 24% of EU Member States integrate the issuance of “multilingual standard forms” of the Regulation on Public Documents, whereas in 54% of Member States, the possibility does not exist. Indeed, European citizens are not required to provide an official translation of family documents. They can ask the authorities of the EU country that issued their document to provide a “multilingual standard form” to facilitate its recognition in the receiving State. In the same vein, in 15% of Members States, official court documents cannot be served electronically on citizens and businesses. And for a third of them, evidence submitted in digital format is not deemed admissible. According to Bérénice Lemoine, it is not only necessary to encourage Member States to use already available legal tech and quickly develop them, but also to start the digital Justice transformation in those States which are less advanced, with the aim of having a more efficient resolution cross-border family procedure. For that, the EU offers a financial support (see Tool 1 of COM/2020/710 final).